Gichina (Suing as the Administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 710 (KLR)
The bottom line
#The Environment and Land Court in Kitale ruled that a County Attorney who assists existing lawyers on record is not a 'change of advocate', so the opposing party's strike-out attempt failed.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 9 Rule 9 CPR applies where the County Attorney comes on record post-judgment to act alongside existing counsel
The Rule does not apply; there was no change of advocate, so no consent or application to come on record was required
The court construed Order 9 Rule 9 as targeting a change of advocate or election to act in person after judgment, aimed at protecting the outgoing advocate's fees. Where counsel is assisted rather than replaced, the mischief is absent and the Rule is irrelevant. The Notice of Appointment expressly stated the County Attorney would act 'alongside' M/s Kidiavai & Company Advocates, and that firm confirmed it had never ceased acting.
Scope of Section 8 of the Office of the County Attorney Act
The County Attorney may appear at any stage of proceedings, but subject to any legal requirement such as Order 9 Rule 9 where it applies
Section 8 of the Office of the County Attorney Act confers a right of audience at any stage, including execution, unless excluded by law. The court held that a holistic reading of Order 9 Rule 9 would bar the County Attorney from coming on record post-judgment where counsel had previously acted, unless the Rule was complied with - but on the facts there was no taking over of representation, so no bar arose.
Legal principles established
#- Order 9 Rule 9 CPR applies only where there is a change of advocate or a party opts to act in person after judgment; an advocate coming on record to act alongside existing counsel is not a change of advocate
- A party has an unfettered right to choose and instruct an advocate of its own choice at any stage of proceedings
Court orders
#- 1.The oral application by the Plaintiff to strike out the Notice of Appointment dated 20/12/2023 and the Replying Affidavit sworn on 05/02/2024 is dismissed
- 2.The Replying Affidavit sworn on 05/02/2024 is found to be properly on record
- 3.Costs of the application to the Respondent
- 4.The matter to be heard subject to the directions given on 07/02/2024 regarding availing from Safaricom Limited the extracts of mobile conversations between learned counsel for determining whether counsel instructed another to hold brief to set aside the orders of 24/01/2024
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over a matter in which judgment was entered on 22/09/2022; application founded on Order 9 Rule 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Gichina (Suing as the Administrator of the Estate of the Late Joseph Gichina Muhoro) v County Government of West Pokot (Environment & Land Case 125 of 2016) [2024] KEELC 710 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/710/eng@2024-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.